#1. Legislative History
N. 1 Art. 98 BV largely corresponds to Art. 31bis para. 2 aBV (banks and stock exchanges) as well as Art. 34 para. 2 aBV (private insurance). The provision was systematically incorporated into the economic section during the total revision of 1999. As reported in the literature, the Federal Council stated that nothing would change in practice, since the Confederation was already previously authorized under Art. 31bis para. 2 aBV to issue regulations on the "practice of commerce and trades".
N. 2 The emergence of Swiss financial market law was significantly shaped by crises. The Banking Act of 1934 arose as a reaction to the banking crisis of the early 1930s (BBl 1934 I 171 ff.). The creation of the integrated financial market supervision FINMA in 2009 followed the financial crisis of 2008 (BBl 2006 2829 ff.).
N. 3 The extension to "financial services in other areas" (para. 2) was newly inserted in 1999 to account for technological development and new forms of financial intermediaries. The Message stated that this was intended to enable a flexible reaction to market developments (BBl 1997 I 1 ff., 326).
#2. Systematic Classification
N. 4 Art. 98 BV is part of the 3rd section "Economic Order" and is closely connected to Art. 97 BV (consumer protection) as well as Art. 94 para. 4 BV (principle of economic freedom). The provision grants the Confederation comprehensive legislative competence in the financial market area.
N. 5 The provision is not an organizational norm, but a pure competence norm. The institutional design of financial market supervision was implemented through the FINMAG (SR 956.1). It is explained in the literature that FINMA is conceived as a public law institution with its own legal personality.
N. 6 For the relationship to cantonal law, → Art. 49 BV applies (precedence of federal law). However, the cantons retain competences for public law insurance institutions, as BGE 138 I 378 clarified. The cross-connections to → Art. 122 BV (civil law) and → Art. 123 BV (criminal law) are relevant for private law and criminal law aspects of the financial market.
#3. Elements of the Offense / Content of the Norm
N. 7 Banking (para. 1): In constant jurisprudence, the Federal Court holds that public deposits are accepted where a person, on a commercial basis, incurs obligations towards third parties by which that person becomes liable to repay them. The definition encompasses traditional commercial banks, savings banks, private banks and new forms such as crowdfunding platforms.
N. 8 Stock exchange business (para. 1): Not only traditional securities exchanges are covered, but also multilateral trading facilities (MTF) and organised trading facilities (OTF). Some commentators emphasize the technology-neutral interpretation in view of electronic trading platforms.
N. 9 Special position of cantonal banks (para. 1): This formulation enables differentiated regulations, but does not prohibit equal treatment. According to Kaufmann/Utz, the special nature is primarily justified by ownership and potential state guarantees, not by a constitutional special position.
N. 10 Financial services in other areas (para. 2): This general clause covers asset management, investment advice, payment services and new business models such as cryptocurrency trading. The "may" formulation grants the legislator discretion whether and how to regulate.
N. 11 Private insurance business (para. 3): The competence encompasses the entire private insurance industry. As noted in the literature, the Federal Court identifies five core characteristics: the existence of a risk, a performance by the insured, a performance by the insurer, the independent character of the operation, and the offsetting of risks on the basis of statistical laws.
#4. Legal Consequences
N. 12 The competence norm authorizes the Confederation to issue all regulations in the designated area: licensing requirements, organizational regulations, supervisory measures, sanctions. The legislation can be designed preventively (ex ante) or reactively (ex post).
N. 13 The exercise of competence is optional. The Confederation need not regulate, but may. However, once it has legislated, federal law takes precedence over cantonal law (→ Art. 49 BV). The cantons may not issue contradictory regulations.
N. 14 The fundamental rights obligation of FINMA is disputed. Some commentators refer to → Art. 35 para. 2 BV, according to which fundamental rights must also be observed when private parties fulfill state tasks. FINMA as a public law institution is subject to full fundamental rights obligation.
#5. Points of Contention
N. 15 Legal nature of listing regulations: The newer view, represented by Weber (Stock Exchange Law Commentary, 2nd ed. 2013) and Böckli (Swiss Company Law, 4th ed. 2009), qualifies listing regulations as legal norms that were issued by the stock exchange based on a delegation norm. As noted in the literature, the Federal Court has so far left this question open.
N. 16 Scope of supervisory duties: Breining-Kaufmann/Weber (HAVE 2008, 89 ff.) advocate extensive state liability for inadequate financial market supervision. In contrast, Biaggini (FS Zobl 2004, 585 ff.) and Nobel (Financial Market Law, 3rd ed. 2010, N. 234) argue that supervision primarily addresses systemic risks, not the protection of individual investors.
N. 17 Relationship to Art. 122 BV: It is disputed to what extent public law interventions in private law relationships are permissible. Hänni/Stöckli (Economic Administrative Law 2013, § 25 N. 8) represent a narrow interpretation, while FINMA practice shows extensive supervisory intervention.
#6. Practice Notes
N. 18 When establishing new financial intermediaries, it should be examined early whether a licensing requirement exists under the Banking Act, SESTA, Insurance Supervision Act or other financial market laws. FINMA publishes circulars for the interpretation of indeterminate legal concepts.
N. 19 For cross-border situations, the territoriality principle must be observed. Swiss financial market law basically applies to all financial services provided in Switzerland, regardless of the provider's domicile (BGE 108 Ib 286).
N. 20 Cantonal competence for public insurance remains. BGE 138 I 378 confirmed that cantonal building insurance companies may also operate in the competitive area, provided competitive neutrality is maintained. A strict separation of monopoly and competitive areas is required.
N. 21 Technological development (blockchain, cryptocurrencies, DeFi) poses new challenges. FINMA applies existing categories in a technology-neutral manner. New business models are to be qualified based on their economic function, not their technical design (FINMA ICO Guidelines 2018).
N. 22 The relationship to EU regulation is gaining importance. Although Switzerland is not bound by EU financial market directives, legislation factually often orients itself to European standards (autonomous nachvollzug). This applies particularly to MiFID II, Solvency II and Basel III.